Luong Van Loc and Others v. The Queen
Read the full judgment text of CACC 437/1980 on BabelCite. This Court of Appeal judgment.
1. The second and third defendants are twin brothers aged at the time of the offence about 22; the first defendant was then about 15½ years. All three are refugees from South Vietnam and were residing at the extensive refugee camp at Kai Tak East in Kowloon. The first defendant shared a bunk space in Shed Al with the other two defendants.
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CACC000437/1980
Coram: Roberts, C.J., McMullin and Li, JJ.A. Date of Judgment: 11th November, 1980 ----------------- JUDGMENT ----------------- McMullin, J.A.: 1. The second and third defendants are twin brothers aged at the time of the offence about 22; the first defendant was then about 15½ years. All three are refugees from South Vietnam and were residing at the extensive refugee camp at Kai Tak East in Kowloon. The first defendant shared a bunk space in Shed Al with the other two defendants. 2. The deceased, VUONG Canh Sinh, was a refugee from North Vietnam. He shared Bunk D7 in Shed Al at the same camp with other refugees. D7 was the topmost bunk in a tier of three. 3. It is common ground that at about 11.30 p.m. on 13th September 1979 the three defendants entered Shed Al and went to Bunk D7. Here a confrontation occurred in the course of which the deceased received several knife wounds, including a deep wound in his back and one in the left chest, either of which could have proved fatal. He was taken to hospital shortly after this event but died there a few hours later. 4. On the 21st of May 1980 the jury returned verdicts of guilty of murder against the first and third defendants and of not guilty of murder but guilty of manslaughter against the second defendant. The first and third defendants were given leave to appeal against their convictions. The application of the second defendant was refused by the single judge and renewed before this court. 5. The case for the Crown rested principally upon the eye-witness' testimony of seven of the residents in Shed Al, who claimed with varying degrees of detail to have witnessed what they in general described as an unprovoked assault. Several of these witnesses also referred to an incident which had occurred at about 3.00 a.m. on the 13th, i.e. 20 hours prior to the fatal attack. On that occasion some residents in Hut Al had wakened and seen a man endeavouring to remove a necklace from the neck of a sleeping woman in one of the bunks. A hue and cry was raised and a number of the inmates, including the deceased, pursued the thief outside the shed. 6. The evidence as to what precisely happened outside the shed is not entirely clear but some witnesses asserted that one of the pursuers, P.W. 3 (his name in Cantonese is CHAN Tak-chuen) received a stab wound in the chest from the man who had been chased out of the hut after the attempted theft. Some of the witnesses said that there were several strangers outside the hut during this episode and some said only three. But all were agreed that, on being wounded, CHAN Tak-chuen fled back to his bunk which was number A16 in Shed Al. He was joined there by the deceased and one or two others. 7. Shortly afterwards, according to the prosecution witnesses, three men entered Shed Al, approached Bunk 16 and challenged the deceased to come and fight. One of these was holding a knife. CHAN Tak-chuen, (P.W. 3) identified that person as the first defendant, the man who had stabbed him. Six of the prosecution witnesses identified all three defendants as being present at the moment of that challenge. 8. The first witness, TRAN An-sin, also identified the first defendant as the one with the knife. That episode ended with the intervention of some police officers. 9. The defendants did not deny that there had been a confrontation of some kind at 3.00 a.m. although the first defendant denied that he had entered Shed Al with the other two defendants. The third defendant said that he had been sleeping out of doors with his two companions and had arisn to go to the toilet. A number of people rushed out of Shed Al and assaulted him and accused him of being a thief. His sleeping companions were roused and after the crowd had dispersed he and the other two went into Shed Al to demand an explanation for this false accusation. He denied that he had stabbed anybody in the course of the incident. All the defendants denied that there had been any challenge to fight. Admission of evidence of attempted theft 10. At the trial an objection was made by Mr. Donnelly, on behalf of all three defendants, to the introduction of the evidence concerning the incident of 3.00 a.m. on the 13th, arguing -
11. The Crown submitted that the evidence was admissible as part of the res gestae; alternatively, that it was relevant to prove motive. The judge in a brief ruling admmitted it. 12. We are satisfied that there was no substance in the objection on the ground of remoteness or want of significant connection. In Rex v. Bond(1) (a case upon which Mr. Donnelly himself relied), on a charge of procuring an abortion, evidence was admitted of the use of similar instruments on another woman on a previous occasion. In considering the rule of law which does not permit another crime to be proved in order to suggest that the accused is more likely to have committed the offence with which he is charged, Kennedy, J. said that an exception to that rule is to be found when prior acts form part of the historical and circumstantial connection with the transaction charged. He went on to say (page 400):
That principle we think is precisely applicable here. What happened at 3.00 a.m. on 13th explained the conduct of the accused at the time of the attack and was an integral part of its history. 13. As to prejudice, Mr. Donnelly concentrated his argument principally on the admission of the evidence relating to the alleged stabbing of CHAN Tak-chuen by the first defendant. As Mr. Gall pointed out this answer was elicited in cross-examination by Mr. Donnelly himself. In any event the theft and stabbing, and the confrontation at 3.00 a.m. were too closely implicated with each other. The prosecutor was careful not to highlight this evidence in any way which might have suggested that it was introduced to show a vicious propensity on the part of the first defendant. Dealing with this evidence the judge said (page 445)
14. Mr. Donnelly says however - it is his final submission under this ground - that this direction does not go far enough. He relied on R. v. Large(2) for the proposition that it was incumbent upon the judge to have explained precisely to the jury the limits of the purpose to which that evidence should be put by them and its relevance to the charge. We think it would have been preferable if the jury had been admonished in some such way in respect of this evidence but we think that the omission is one which merits the application of the proviso of section 83(1) of the Criminal Procedure Ordinance. 15. R. v. Sang(3) confirms the existence of a discretion in the trial judge to exclude evidence which is admissible on the ground that its prejudicial effect may outweigh its probative value. That there is such a discretion is not in dispute. There may be cases where, although the refusal to exclude prejudicial evidence is not based upon a mistaken view of the facts or of the law, the prejudicial value is clearly so extreme and the probative effect plainly so slight that an appellate court would be entitled to say that there had been a failure to exercise the discretion in a properly judicial manner. This is not such a case. We think therefore that this evidence was properly admitted as part of an explanatory nexus of events leading up to the killing at 11.30 on 13th. Provocation 16. The case for the Crown was that the three defendants, having shown violent resentment at the accusation of theft, in which the deceased had taken a leading role at 3.00 a.m., had consulted together and decided upon a revenge attack. They made their way to Shed Al where they approached Bunk 16A, at which the earlier confrontation had taken place, and demanded to be directed to where the first defendant was to be found. The fifth prosecution witness, VUONG Chan-sang, said that he pointed out Bunk 7 where the deceased then was with several companions and that the three defendants, went to that bunk. The consensus of the eye-witnesses' evidence as to what happened thereafter was that the first and the third defendants climbed up on that bunk, armed with knives, and attacked the deceased, who endeavoured to defend himself with a piece of metal. 17. The only evidence tending to implicate the second defendant in the attack was given by TRAN An-sin, the first prosecution witness, who said that D2 had gone to the assistance of the deceased, when he (D2) saw the first and third defendants climbing up the bunk and that one of the twins (who has been satisfactorily identified on the evidence as a whole as the second defendant) endeavoured to stop him. Tran's evidence is as follows:-
Tran added that immediately after that he seized a chopper which was nearby and struck the second defendant with it. Later medical examination of the second defendant confirmed that he had received a number of wounds mainly on the front of the body at least one of which had required surgical stitching. 18. Mr. Gall for the Crown does not rely on Tran's evidence as showing that the second defendant had endeavoured to take an active part in the stabbing of the deceased. Indeed the jury's verdict of manslaughter is explicable only on the basis that they had found that the second defendant had a common intention with the others to engage in an unlawful fight without the use of lethal weapons. 19. The defence case was that the three defendants, resentful indeed of the imputation that they had been involved in thieving, had resolved to go and have the matter out by way of peaceful discussion with the residents in Shed A1. The first defendant denied that he had taken any weapon there, but the third defendant admitted to having been in possession of a knife. According to the defendants, the third defendant, upon reaching Bunk D7, demanded an explanation for having been accused of theft the previous night. The deceased invited the third defendant to climb up the bunk and the latter did so. As he was doing so, the deceased suddenly produced a knife and stabbed at his head but missed him. The first defendant climbed up to help his friend, who was then being pressed not only by the deceased but by other persons on the bunk who were armed with iron bars or bottles. The first defendant said he was hit with an iron bar on his hand, whereupon he jumped down to the ground and found the knife on the floor near a window. He climbed up once more to bunk D7, where he saw the deceased stabbing his friend. The deceased then turned and made to stab the first defendant, who, to save himself and his friend, retaliated by stabbing the deceased in the chest. 20. The third defendant said that he was not only menaced by the deceased who was using a knife but also by another man who was behind him. He tried to ward off the deceased's blows, but received an injury on his chest. He took a knife from his waistband and stabbed the deceased but was unable to say whether he stabbed him in the chest or in the back. Medical evidence showed that one of the fatal wounds was in the left chest and the other was in the back. 21. Medical examination of the first and third defendants disclosed a number of minor injuries which might have been inflicted upon the night in question. The first defendant, had healing abrasions on the left forearm and the mid-abdomen. The third defendant had small healing wounds on the back of the left forearm, left wrist, right armpit and in front on the mid-chest. The doctor was unable to express a firm opinion as to whether the third defendant's wounds could have been the result of stabbing. 22. At the trial the primary defence put forward was self-defence. The nature of the Crown's duty in relation to that defence was described correctly to the jury by the judge and no question as to self-defence has been raised upon this appeal. The complaints relate solely to the directions upon provocation. 23. No exception is taken to the general direction, which faithfully follows the lines of Lord Devlin's classic statement in R. v. Duffy(4). What Mr. Donnelly alleges is a failure to relate the abstract terms of that direction to the evidence as it affects the defendants. He stresses the failure to direct the jury separately in respect of each of those defendants as to the possibility of provocation. 24. There is a major difficulty which confronts every trial judge dealing with a fatal assault of this kind. Usually, as here, there are strongly opposing stories as to how the trouble started. The judge is not to know what facts will eventually be found by the jury. His direction has to make allowance for the possibility that they will not fully accept what was said either by the prosecution witnesses or by the defendants and their witnesses. 25. In such cases, a vital matter to be determined is who started the violence and in what way. Even where the defendants are shown to have been the initiators of the confrontation, it may nevertheless be possible for them to rely upon extreme and provocative behaviour to mitigate the gravity of a retaliation which results in death. (R. v. Edwards(5)). 26. It would have been preferable if the judge had referred to the injuries received by the first and third defendants in connection with this question of provocation and reminded the jury that, if they were satisfied that the defendants had gone armed to confront their supposed assailants but had done so as a self-defensive precaution and had been set upon by others, it would be open to the jury to find sufficient provocation to reduce the killing to manslaughter. 27. Such a recital would have helped the jury to bring the judge's explanation of the nature of provocation to bear upon the facts affecting the first and third defendants. Had there been nothing in the evidence to set against the prosecution witness' story of an immediate and unprovoked attack, this omission would be of less importance. But in addition to the medical evidence there was the evidence of the first prosecution wintess, who asserted that there had been something in the nature of an argument before anything violent occurred. He said (page 86 of the record):
So there was matter which, if the jury accepted it, was capable of affording evidence of provocative words and acts. 28. To this must be added two matters of a more specific nature in respect of which the Crown concedes that the summing-up was deficient. Firstly, in directing the jury in the terms of section 3 of the Homicide Ordinance that the test to be applied was the test of a reasonable man, the judge omitted to add the usual advice that that phrase means a reasonable person of the age and background etc. of the defendant. This was especially important in relation to the first defendant, in counsel's submission, since the latter was only a boy of 15½ at the time of the event. Mr. Donnelly cited the case of Camplin(6) a case of homicide where the accused was a boy of 16 years. Failure so to direct the jury in that case resulted in the conviction being quashed. In the present case, the judge had commented upon the background and upbringing of the first defendant and rightly directed the jury to consider whether they thought that these might have resulted in his maturing early. However, Mr. Gall concedes that failure to direct on the lines indicated in Camplin(6) is a material but, he would maintain, not a fatal non-direction. 29. In relation to the third defendant, the judge observed (page 454)
Counsel for the Crown concedes that this is a misdirection. There was some evidence of loss of self-control although admittedly it came from the defendant himself in answer to a leading question. He had said that when attacked by the deceased, they just stabbed at each other and that at the time he wasn't quite himself and didn't know where his blows landed. The question was then put to him "When you say you weren't quite yourself do you mean by that you had lost control?" Answer "Yes, I did not know what was happening." Mr. Gall, conceding these defects in the summing-up, asks us to apply the proviso. 30. The jury rejected the defence of self-defence. It seems very likely that they had formed the view that the first and third defendants had gone armed to the shed and that the episode bore the appearance of a revenge attack. The evidence of the defendants themselves may well have lent additional substance to that view. In giving evidence, they related two additional incidents, not mentioned by any of the prosecution witnesses and not put to the latter in cross-examination. They described how on the morning after the first unpleasantness at Shed A1, they were going to work when they encountered a group of persons near the gate of the camp, amongst whom they saw the deceased. The deceased pointed at them and said something to the effect that if he had a knife with him he would stab them to death. 31. The first defendant was not with them on this occasion but later that evening all three defendants were together after work and were returning to the camp at about 9.00 p.m. having been out together at some entertainment. According to them, as they entered the camp they were set upon by a group of persons who emerged from Shed A1 and all of them were beaten. This occurrence was alleged to have taken place between 9.30 and 10.00 p.m. After this, they repaired to the first defendant's bunk and discussed what should be done. They decided to go and remonstrate with their assailants and demand an explanation. 32. Assuming, as I think we must, that in the case of the first and third defendants the jury were satisfied that they had gone there armed, it seems most unlikely that the jury would have considered as a reasonable possibility, after all that had gone before, that the knives were taken merely for self-protection in case their attempt at a peaceful discussion should result in a further assault upon them. The jury would no doubt have had fresh in their minds a significant admission made by the third defendant to his own counsel when he was asked what the purpose of the discussion with his companions had been. What he said was:
33. The judge had warned the jury of their duty, and their exclusive power, to make findings of fact. He had reminded them of the salient features of the evidence given by the prosecution witnesses and by the defendants and of the nature of the injuries suffered by the deceased and the defendants. In dealing with provocation he touched lightly upon the incident alleged by the defendants to have occurred at 9.30 and rightly pointed out that that left time for cooling off. He then went on :
Notwithstanding the deficiencies in the directions to the jury on which Mr. Donnelly relies, we are satisfied that it is so unlikely that the jury, if properly instructed, would have come to any other conclusion that the case is a proper one for the application of the proviso. Second defendant 34. A number of points were taken on behalf of the second defendant. Apart from the objection to the admission of the theft and assault at 3.00 a.m., with which we have already dealt, only two of these need to be considered. 35. Firstly, it is said that the judge failed to warn the jury of the danger of convicting the appellants on the evidence of P.W. 1, TRAN An-sin. The suggestion is that, although not an accomplice in law, his evidence should be regarded with suspicion as that of a person with an interest to serve firstly, because he was a member of the opposing party of North Vietnamese and, secondly, because it was his brother, the third prosecution witness, who had been stabbed earlier in the day by the third defendant. No warning of any danger which might be inherent in the evidence of that witness was given by the judge. 36. Mr. Donnelly relies upon the Director of Public Prosecutions v. Kilbourne(7) and in particular upon the following dictum of Lord Hailsham L.C. at page 740 where, having dealt with the various categories of witness of whose evidence the law requires corroboration, he commented:
None of the other judges in that case seems to have gone so far and we think it would be unwise to rely upon that dictum to support any suggestion that there is a rule of law, or even a rule of practice, that such a warning should always be given, desirable though it may be in any given case. 37. In Purnell(8) it was pointed that it was a matter of discretion for a judge whether such a direction is to be given. And in R. v. Whitaker(9) it was said that the matter is primarily one for the discretion of the judge and that where the question of corroboration of a witness' evidence is not raised in argument it is no ground for criticism on appeal against conviction that the judge did not deal with the matter. As with the witnesses in Whitaker's case(9), the conflict of interest between the 2nd defendant and P.W. 1 would have been in any event obvious to the jury. We think therefore that there is no substance in this objection. 38. Then it is said that the judge failed to direct the jury that the evidence of the second defendant's actions at the material time were consistent with an intention on his part to protect his brother, the third defendant, from being attacked and that the appellant was entitled to be acquitted if there was any reasonable doubt that he did not intend to assist the third defendant to attack those on the topmost bunk. Effectively, there was only the story of the second defendant as against that of P.W. 1 on this question. The jury must have accepted the version given by the second defendant. They had been correctly directed on the law governing common intention. Since they found that the first and third had attacked the deceased unprovoked and with intent to cause grievous harm, they cannot have believed that the second defendant had been climbing up to the top bunk to assist his friends in an assault with lethal weapons upon a virtually defenceless man. 39. None of the other witnesses described anything of the kind and the jury must therefore have concluded that the fight between the second defendant and P.W. 1, a man armed with a dangerous weapon, was intended for the protection of the other defendants without necessarily being in furtherance of their lethal attack. The second defendant was not armed and there is no direct evidence that he was aware of the existence of the knives. It was because of that that Counsel urged his total acquittal. The three defendants, however, on their own admission were together in Shed A2 for about an hour and a half discussing what should be done. They knew that Shed A1 was occupied by many people from North Vietnam with some of whom there had been a violent confrontation. The only reasonable conclusion which the jury could have drawn was that the second defendant, assuming that he was not aware that his companions were armed, must, nevertheless, have anticipated at least an unlawful fight. A verdict of manslaughter would be a perfectly proper verdict on such a finding (See Reg. v. Reid(10)). It would only be if the jury thought it possible that the second defendant had not anticipated any unlawful action of any kind that they would have been obliged to acquit him. We do not think that their verdict can be faulted on any such ground. 40. The appeals of the first and third defendants are therefore dismissed as is also the application of the second defendant. Representation: J.D. Donnelly, instructed by (Director of Legal Aid) for the appellants. T.M. Gall for the Crown/respondent. (1) (1906) 2 K.B. 389 (2) Criminal Law Review 1978 at page 222 (3) (1979) 2 All E.R. 1222 (4) (1949) 1 All E.R. 932 (5) 58 Cr. App. R. 157 (6) (1977) Crim. L.R. 948 (7) (1973) A.C. 729 (8) (1968) Cr. L.R. 449 (9) (1976) 63 Cr. App. R. 193 (10) (1975) 62 Cr. App. R. 109 |